Sale & Recording Flashcards
Types of Notice
- Actual Notice - Notice served to parties
- Constructive Notice - Through a recording system (must be proper) *Wild deed - recorded outside of chain of title (not proper)
- Inquiry Notice - knowledge inferred from circumstances suggesting prior conveyance
Types of recording Statutes
- Race - First person to record prevails
- Notice - Subsequent purchaser for value w/o notice (BFP) prevails, regardless of who records first
- Race-Notice - Subsequent purchaser for value w/o notice (BFP) who records first prevails.
Adverse Possession characteristics
- Open & Notorious (behaves as owner)
- Hostile (against rights of owner)
- Continuous (if interrupted, must be consistent w/nature of property - summer property)
Risk of Loss doctrines
- Equitable Conversion - Risk passes to buyer when K is formed (Majority). In Minority, seller keeps the risk unless buyer has possession.
- Uniform Vendor and Purchaser Risk Act - Risk passes to buyer when possession of title pass
* Doctrines only apply when parties haven’t agreed to the contrary
Merger doctrine
If guarantee is made in sale K and not reflected in DEED, it is extinguished when deed conveyed to buyer
Right of redemption
- after foreclosure
- statute gives time to prior mortgagor
- to pay money to
- redeem property
- * Only by statute and after foreclosure
When is a Title Unmarketable?
When any part of the land is subject to:
- Adverse possession
- Encumbrances (servitudes, including lack of access, or mortgages) - waivable by buyer
- Zoning Violations
Reasonable person would not buy
Implied promises of Seller in land K
- Marketable Title at CLOSING
- No false statements of Material Fact (gral. disclaimers will not relieve seller for fraud- “as is”)
- No failure to disclose latent material defects (if known)
Formalities of Land K
- writing (except part performance -
- possession, partial or total payment, and/or substantial improvements of the land) -
- Description of land -
- Identify parties -
- Specify price (or other consideration) -
- Signed by party to be bound
Does the land K contain Implied Warranties of Fitness & Habitability?
NO (UNLESS -In the sale of a new home by a constructor)
What is equitable conversion?
Doctrine under which purchaser of real property becomes an owner of title when signing the K
Who inherits land after death of buyer in an equitable conversion?
Buyers heirs.
Seller heirs only own personal property interest (money owed by buyer)
Requirements of closing
- Lawful execution of deed
- Delivery of deed
- Acceptance of grantee
What are the requirements to execute a deed?
- Writing (denoting intent to convey)
- Identity of parties
- Describe property
- Signed by grantor
Types of Delivery of Deed
- Actual delivery - Grantor physically or manually delivers the deed
- Implied delivery - Present intent of the grantor to deliver deed (words or actions)
- Presumption of delivery - grantor relinquish absolute and unconditional control over property (handed to grantee, acknowledged before Notary, Recorded)
Types of defective deeds
- Void Deeds - set aside even if property has passed to bona fide purchaser (BFP)
- Voidable - set aside ONLY if property HAS NOT passed to BFP
When a deed is Void?
- Forged
- Deed never Delivered
- Fraud in Factum
When a Deed is Voidable?
- Lack of Capacity
- Infancy
- Duress
- Breach of Fiduciary Duty
- Undue Influence
- Mistake
- Fraud in Inducement
Requirements for fraudulent conveyance
- Actual Intent to hinder, delay or defraud creditor or grantor (or)
- Not receiving reasonably equivalent value in exchange
Types of Deeds
- Quit-claim Deed - No covenants
- General Warranty Deed - 3 present and 3 future covenants
- Special Warranty Deed - 2 promises by grantor
Exception for the Quit Claim Deed
Marketable Title at Closing (stems from the land K, not the deed)
Present covenants of General Warranty Deed
Breached at Time of Delivery
- Covenant of Seisin - Grantor warrants he’s the owner
- Covenant of Right to Convey - Grantor warrants he has power to convey property
- Covenant against Encumbrances - Grantor warrants there are no encumbrances on property (mortgages, liens, easements, covenants, etc.)
Future Covenants of General Warranty
Breached if Grantee Disturbed while possessing
- Covenant of Quiet Enjoyment - No disturb of Grantee’s possession by 3rd parties assertion of superior title
- Covenant of Warranty - Grantor will defend and compensate for lawful claims by assertion of superior title
- Covenant of Further Assistance - Execute any document to perfect title
What promises contain the Special Warranty Deed?
- Grantor has not conveyed to another
- Free from encumbrances created by Grantor
Only applies to the Grantor (not predecessors in interest)
Estoppel by Deed
If a party that sells a property w/o proper power later acquires ownership of property, MUST CONVEY property to buyer.
What is the Shelter Rule
Anyone that takes of a BFP will prevail against any interest over which the BFP would have prevailed, even if grantee had knowledge of prior unrecorded interest, or it’s a donee, heir, or devisee.
What is needed to transfer real estate?
- Delivery of the deed
- Not necessary recording
- Once deed delivered, grantor can’t revoke
What is an Accession?
Annex chattel into another’s property that can be removed w/o damage to the property
What is a Trade Fixture?
- Fixture installed by a tenant in a trade or business
- Can be removed, unless damage to the property
- If damage to the property, tenant must pay for damages/repairs
How can a signature be waived from a deed?
- Acceptance and record of the deed
- Waive signature of the grantee to enforce mortgage
- It’s called dead poll (deed only signed by grantor)
Rezoning theories
- Variance – Permits a waiver from zoning requirements (if owner would suffer great hardship)
- Doctrine of amortization – means to terminate a non-conforming use (use existed @ time of rezoning)
